Wright v. Swigart
| Decision Date | 16 August 2013 |
| Docket Number | NO. 2012-CA-001956-MR,2012-CA-001956-MR |
| Parties | BRIDGETT WRIGHT APPELLANT v. RUSSELL A. SWIGART; ECOLAB, INC.; MEDICAL COMPANY, INC.; AND OR SOLUTIONS, INC. APPELLEES |
| Court | Kentucky Court of Appeals |
TO BE PUBLISHED
APPEAL FROM KENTON CIRCUIT COURT
By separate order entered this date, the Court denied appellant's motion to reconsider our previous order dismissing her appeal as interlocutory. However, in order to address arguments advanced in the motion to reconsider and to clarify the order dismissing, the Court on its own motion has elected to modifythe order of dismissal by substituting this opinion and order for the order previously entered.
In dismissing this appeal as interlocutory, the Court cited as precedent this Court's opinion in Copass v. Monroe County Medical Foundation, Inc., 900 S.W.2d 617 (Ky. App. 1995). Upon further consideration, we concede that the language which we cited from Copass is dicta and is not controlling authority. However, that language accurately states the law concerning the application of the nunc pro tunc rule. Furthermore, the principles discussed in Copass would not preclude the application of the relation-forward doctrine. Nevertheless, we conclude that the relation-forward doctrine does not apply in this case because Wright filed a notice of appeal from a clearly interlocutory order. Therefore, for the reasons that follow, we hold that Wright's appeal must be dismissed as interlocutory.
In the matter below, Wright brought suit against the Appellee Russell A. Swigart and three corporations. On August 31, 2012, the circuit court entered a summary judgment dismissing the corporate defendants, but Wright's claims against Swigart were not affected. The trial court issued an order denying Wright's CR 59.05 motion on October 22, 2012. However, neither order contained finality language as required by CR 54.02.
On November 9, 2012, Wright filed a Notice of Appeal naming Swigart and the three corporate defendants as Appellees. On December 17, the Appellees filed a motion to dismiss with this Court, noting that the appeal had notbeen taken from a final and appealable order. While we do not have the circuit court record, it appears that Wright moved the trial court for entry of an amended order granting finality. The trial court entered a nunc pro tunc order on December 20 which included the necessary finality language. Appellees moved to dismiss this appeal alleging that the December 20 order could not retroactively grant finality to a non-final order.
In Copass, the plaintiffs filed suit for medical negligence in Jefferson County, even though the negligent acts occurred in Monroe County. Two of the defendants filed motions to dismiss for improper venue. The trial court granted the motions. Thereafter, on March 14, 1994, the trial court denied the motion to alter, amend, or vacate the dismissal of those two defendants. As further set out in the opinion:
The Copasses filed a notice of appeal with this Court on April 14, 1994. This Court ordered the Copasses to show cause why the appeal should not be dismissed as having been taken from an interlocutory judgment, in that the trial court's previous order did not contain the recitation of finality required in CR 54.02. Thereafter, the trial court entered an order nunc pro tunc adding the finality language of CR 54.02. However, this Court dismissed the appeal, reasoning that "a nunc pro tunc order cannot retroactively vest finality upon a judgment which was interlocutory when the notice of appeal herein was filed." The Copasses filed a new notice of appeal from the trial court's corrected order.
It appears that this Court has applied the above-quoted language as a basis for dismissal in a number of unpublished opinions and orders. However, thisdiscussion is not part of the substantive holding of the Copass decision. Rather, it is merely a recitation of the procedural history of the first appeal. As such, this language is not authoritative, although it may be persuasive or entitled to respect. See Cawood v. Hensley, 247 S.W.2d 27, 29 (Ky. 1952), and Board of Claims of Kentucky v. Banks, 31 S.W.3d 436, 439 n.3 (Ky. App. 2000).
However, the discussion in Copass is correct insofar as applies the nunc pro tunc rule. The purpose of the rule is to record some act of the court done at a former time which was not carried into the record. The power of the court to make such entries is restricted to placing into the record evidence of judicial action which has been actually taken. It may be used to make the record speak the truth, but not to make it speak what it did not speak but ought to have spoken. Hence, a court in entering a judgment nunc pro tunc has no power to construe what the judgment means, but only to enter of record such judgment as had been formerly rendered, but which had not been entered of record as rendered. Carroll v. Carroll, 338 S.W.2d 694 (Ky. 1960). See also Powell v. Blevins, 365 S.W.2d 104, 106 (Ky. 1963); James v. Hillerich & Bradsby Co., 299 S.W.2d 92, 94 (Ky. 1956); Benton v. King, 199 Ky. 307, 250 S.W. 1002, 1003 (1923).
Moreover, the nunc pro tunc rule cannot be used to make an order that it might or should have made. Hankins v. Hankins' Adm'r, 173 Ky. 475, 191 S.W. 258 (1917). Consequently, the Copass opinion correctly states that the nunc pro tunc rule cannot be used to retroactively grant finality to an order which was notoriginally designated as final. But the inapplicability of the nunc pro tunc rule does not always require dismissal of an appeal from a non-final order.
In his prior dissent to the prior order dismissing the appeal, and in his dissent to this opinion, Judge Thompson discusses the application of the relation-forward rule to a premature filing of a notice of appeal. This rule is separate and distinct from the nunc pro tunc rule. In Johnson v. Smith, 885 S.W.2d 944 (Ky. 1994), the Kentucky Supreme Court explained that a premature notice of appeal will be deemed to relate forward to the date when finality attaches. Id. at 947-48. This rule has been applied recently by the Kentucky Supreme Court in James v. James, 313 S.W.3d 17 (Ky. 2010), by this Court in N.L. v. W.F., 368 S.W.3d 136 (Ky. App. 2012), and in a number of unpublished opinions.
But in Johnson, the trial court's original summary judgment contained the finality language required by CR 54.02. The appellate issue arose because another party had filed a timely CR 59.05 motion before the filing of the notice of appeal. As a result, the previously final judgment was converted into an interlocutory judgment until the trial court ruled on the motion to reconsider. Once the trial court denied the motion, the judgment again became final and the time for filing a notice of appeal commenced. The Court's application of the relation-forward rule simply allowed the prematurely-filed notice of appeal to be effective as of the date it should have been filed, rather than requiring dismissal of the first appeal and filing of a new notice of appeal.
In applying this rule, the Court in Johnson pointed out that the purpose of CR 73.02(1) is to "put appellees on notice of the intent to appeal before expiration of the thirty day time limit in CR 73.02(1)(a) . . . ." Johnson, 885 S.W.2d at 949. Under the particular circumstances of that case, the Court concluded a litigant could have mistakenly believed that a final judgment had been entered. Since the trial court's non-final order would be appealable if followed by the formal entry of judgment, the Court concluded that it would not be unreasonable to file a notice of appeal prematurely and the appeal should not be dismissed solely on this basis. Id. But in a footnote, the Court cautioned that the relation-forward rule does not permit the filing of a notice of appeal from a clearly interlocutory decision. Id. at 950, n.1, citing FirsTier Mortgage Co. v. Investors Mortgage Insurance Co., 498 U.S. 269, 275, 111 S. Ct. 648, 652, 112 L. Ed. 2d 743 (1991).
We would also note the 2009 amendment to CR 73.02(1)(e), which specifically addresses the application of the relation-forward rule:
Under the clear language of the rule, the relation-forward doctrine only applies where a final judgment was made interlocutory through the intervening filing of a post-judgment motion. Consistent with this rule, Johnson and the other cases cited in Wright's motion for reconsideration and in the dissent each involved this type of situation. Wright's appeal, on the other hand, involves a different situation.
The trial court's original summary judgment order of August 31 and its October 22 order denying the motion to reconsider only disposed of the claims against the corporate defendants and did not resolve the claims against...
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